A Statement of Moral Purpose: the 1948 Genocide Convention
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Fordham International Law Journal Volume 2, Issue 1 1978 Article 2 A Statement of Moral Purpose: The 1948 Genocide Convention Michael P. Murphy∗ ∗ Copyright c 1978 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj A Statement of Moral Purpose: The 1948 Genocide Convention Michael P. Murphy Abstract Genocide was declared an international crime in 1946. In response to this declaration, the Convention on Prevention and Punishment of the Crime of Genocide was adopted in 1948. Al- though 28 years have passed, the United States has not yet determined its position, with respect to the Convention and this international compact is still pending before the Senate. This article is concerned primarily with the probable impact of the United States’ position on the Genocide Convention in light of international law and relations. The body of the Convention is discussed and analyzed along with three proposed United States’ understandings. It is argued that, as the United States is now reestablishing its moral leadership in the world, ratification of the Genocide Convention is in our national interest as a statement of faith in our national principles and of the readiness to develop international law on human rights. NOTES A STATEMENT OF MORAL PURPOSE: THE 1948 GENOCIDE CONVENTION I. INTRODUCTION Genocide, the word which brings to mind the most heinous of human actions, was declared an international crime in 1946 by the United Nations General Assembly.1 In response to this declaration, the Conven- tion on Prevention and Punishment of the Crime of Genocide 2 was adopted in 1948. 3 Since that time, 83 governments,4 including those of almost every major nation in the world, have become parties. The Convention, essentially a moral and symbolic document in terms of substance, came into force in 1951. 5 Although 28 years have passed, the United States has not yet determined its position, with respect to the Convention, and 6 this international compact is still pending before the Senate. This article is concerned primarily with the probable impact of the United States'position on the Genocide Convention in light of international law and relations. The body of the Convention is discussed and analyzed along with the three proposed United States'understandings. It is argued that, as the United States is now reestablishing its moral leader- ship in the world, ratification of the Genocide Convention is in our national interest as a statement of faith in our own national principles and of the readiness to develop international law on human rights. 1. G.A. Res. 96, U.N. Doc. A/231, at 3 (1946). 2. Adopted Dec. 9, 1948, 78 U.N.T.S. 277. 3. Adopted by resolution by a vote of 56 to 0. G.A. Res. 260, U.N. Doc. A/760, at 9 (1948). 4. Hearings on the Int'l Convention on the Prevention and Punishment of the Crime of Genocide Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 1 (1977) (Opening Statement of Hon, Richard Stone) [hereinafter cited as 1977 Hearings]. 5. Adopted Dec. 9, 1948, 78 U.N.T.S. 277, came into force Jan. 12, 1951. 6. See generally 1977 Hearings. II. A BRIEF HISTORY OF UNITED STATES RESPONSE r 7 When the United States signed the Convention on-December 11, 1948, the effectiveness of the signature was subject to ratification following the advice and consent of the United States Senate. President Truman first submitted the Genocide Convention to the Senate for consideration on June 16, 1949. 8 The President's message and the Convention were referred to a subcommittee on Foreign Relations which conducted hearings in January and February of 1950.9 At these hearings, there were a large number of witnesses who spoke for and against ratification.1 0 In May 1950 the special subcommittee reported favorably on the Convention to the full committee recommending three understandings and one. declara- 1 1 tion. The full committee, however, did not take any action. 1 2 Five years later, the Eisenhower administration announced its lack of 3 interest in the Genocide Convention.1 No further action was taken on the Convention until President Nixon, 1 4 on February 19, 1970, requested that the Senate consent to ratification. 7. 78 U.N.T.S. 277, 310. 8. President's Message to Congress Transmitting a Convention on the Prevention and Punishment of the Crime of Genocide, Exec. 0. 81st Cong., 1st Sess., 95 Cong. Rec. 7825 (June 16, 1949). 9. Hearings on the Int'l Convention on the Prevention and Punishment of the Crime of Genocide Before a Subcomm. of the Senate Comm. on Foreign Relations, 81 Cong., 2nd Sess. 2 (1950) (hereinafter cited as 1950 Hearings). 10. See generally Id. 11. S. Rep. No. 92-6, 92nd Cong,, Ist Sess. 2 (1971); See note 28, infra, which comprises the same basic purpose. 12. S. Rep. No. 92-6, 92nd Cong., 1st Sess. 2 (1971). 13. 32 Dep't. State Bull. 820, 822 (1955). 14. 116 Cong. Rec. 4167-68 (1970). New hearings were conducted in April and May of 1970 by a Foreign 15 Affairs subcommittee. The Senate, however, again failed to act on the Genocide Convention. 1 6 In order to accommodate witnesses who had not testified, the subcommittee considering the Genocide Convention 17 decided to hold additional hearings on March 10, 1971. After these hearings, the full committee reported favorably on the Convention with three understandings and one declaration, and recommended in May 1971, that the Senate ratify.1 8 Once again, no further action was 19 taken by the Senate. The issue was reconsidered in 1973 when a 20 subcommittee recommended consent subject to the 1971 conditions. In its report, the subcommittee included a draft of implementing legisla- 21 tion with its recommendations. As in the past, the matter never reached the Senate for a vote. The Genocide Convention was debated by the Senate in executive 22 session in January and February of 1974. Two motions for cloture of debate on the Convention failed by a narrow margin, to achieve the 2 3 needed two-thirds vote in the Senate. The Senate Foreign Relations Committee discussed the Convention 2 4 on April 13, 1978, again favoring Senatorial consent to ratification. 15. Hearings on the Convention on the Prevention and Punishment of the Crime of Genocide Before a Subcomm. of the Senate Comm. on Foreign Relations, 91st Cong., 2nd Sess. (1970). 16. S. Rep. No. 92-6, 92nd Cong., 1st Sess. iii (1971). 17. Hearings on the Convention on the Prevention and Punishment of the Genocide Before a Subcomm. of the Senate Comm. on Foreign Relations, 92nd Cong., 1st Sess. (1971). 18. S. Rep. No. 92-6, 92nd Cong., 1st Sess. 18-19 (1971). See note 28, infra, for text, 19. S. Rep. No. 93-5, 93rd Cong., 1st Sess. 3 (1973) [hereinafter cited as 1973 Report]. 20. Id. at 19. 21. Id. at S. 3182, 92nd Cong,, 2nd Sess. 21-23 (1972) (appendix). 22. 120 Cong. Rec. 954-67 (1974). 23. 120 Cong. Rec. 2338-39 (1974). 24. Investigation into Certain Past Instances of Genocide and Exploration of Policy Options for the Future, Hearings before the Subcomm. on Future Foreign Policy Research and Development of the House Comm. on International Relations, 94th Cong., 2nd Sess. (1976). The Committee noted, as a significant development, that the American Bar Association had reversed its earlier opposition and now supported ratification.2 5 President Carter, in his address to the United Nations on March 17, 1977, publicly announced his intention to work closely 26 with Congress in seeking ratification of the Convention. The Conven- tion again was debated on the Senate floor in May of 1977, which was 2 7 favorable towards ratification. III. POSSIBLE SCENARIOS REGARDING UNITED STATES RATIFICATION Every Senate committee and subcommittee hearing on ratification of the Genocide Convention has conditioned its recommendation of accession 28 on the inclusion of three understandings and one declaration. Ratifi- cation by the United States of the Convention with these understandings 25. 1977 Hearings, supra note 4, at 42-43. Statement of Bruno v. Bitker, Chairman, Committee on International Human Rights, Section on International Law, American Bar Association, Washington, D.C. 26. 1977 Hearings, supra note 4, at 138, President Carter's address to the UN General Assembly, March 17, 1977. 27. Id. 28. See generally Id., where the understandings and declarations were discussed favorably. See also 1973 Report, supra note 18, at 19. The purpose is to effect the position of the United States more clearly. The text is as follows: 1. That the United States Government understands and construes the words, "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such" appearing in Article II, to mean the intent to destroy a national, ethnical, racial or religious group by the acts specified in Article II in such manner as to affect a substan- tial part of the group concerned. 2. That the United States Government understands and construes the words "mental harm" appearing in Article II (b) of this Convention to mean permanent impairment of mental faculties. 3. That the United States Govern- ment understands and contrues Article VI of the Convention in accordance with the agreed language of the Report of the Legal Committee of the United Nations General Assembly that nothing in Article VI shall affect the right of any State to bring to trial before its own tribunal any of its nationals for acts committed outside the State. 4, That the United States Government declares that it will not deposit its instrument of ratification until after the implementing legislation referred to in Article V has been enacted.